Staroske v. Pulitzer Pub. Co.

• Decision Date: 01 June 1911
• Citation: 138 S.W. 36,235 Mo. 67
• Parties: WILLIAM STAROSKE, Appellant, v. PULITZER PUBLISHING COMPANY
• Court: Missouri Supreme Court

138 S.W. 36

235 Mo. 67

WILLIAM STAROSKE, Appellant, v. PULITZER PUBLISHING COMPANY

Supreme Court of Missouri, First Division

June 1, 1911

Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.

Affirmed.

Charles Fensky for appellant.

(1) Where an agency exists, coupled with an interest, such agency is irrevocable. Lockart v. Forsythe, 49 Mo.App. 658; State ex rel. v. Walker, 88 Mo. 284; Hunt v Rausmanier's Admr., 8 Wheat. 174; Barr v Schroeder, 32 Cal. 609; Coffin v. Landis, 46 Pa. St. 431; Blackstone v. Buttermore, 53 Pa. St. 266; South v. Kerman, 5 Weekly Law Bul. 145; Powell v. Road Co., 24 Ala. 441. This court in numerous cases held that where an agency is created, and although the agent has no property or interest in the agency, if the agent spent time and money thereon the agency cannot be revoked by the principal without liability therefor. Glover v. Henderson, 120 Mo. 368; McCray v. Pfost, 118 Mo.App. 535; Shell v. Railroad, 132 Mo.App. 535; White v. Railroad, 202 Mo. 540. (2) Our statutes denounce any agreement, arrangement or combination made with a view to lessen, or which tends to lessen, full and free competition in the sale of any article. In order to vitiate a contract or combination, it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition (United States v. Knight Co., 156 U.S. 16), and the necessary effect of the agreement is the criterion, no matter what the intent was on the part of those who signed it. United States v. Freight Assn., 166 U.S. 342; Missouri v. Ins. Co., 152 Mo. 1; R. S. 1899, sec. 8978; Door Co. v. Feulle, 215 Mo. 462; Carew v. Rutherford, 106 Mass. 1; Van Horn v. Van Horn, 27 Vr. 218; Railroad v. Penn. Co., 54 F. 730; Reg. v. Druitt, 10 Cox Cr. Cas. 593; Bishop, New. Cr. Law, sec. 230; Desty, Cr. Law, sec. 11b; Morris Run Co. v. Barclay, 68 Pa. St. 173; State ex inf. v. Standard Oil Co., 218 Mo. 359; Heim Brewing Co. v. Bellinder, 97 Mo.App. 64; Fink v. Granite Co., 187 Mo. 244; Walsh v. Plumbers Assn., 97 Mo.App. 280. The petition in this case stated a cause of action on both theories advanced.

Judson & Green for respondent.

(1) The alleged agreement between respondent and its carriers to the effect that the said carriers must not deliver the St. Louis Times while they were acting as carriers of the Post-Dispatch, was not in violation of section 8978 of the Anti-Trust Act of 1899. Whitwell v. Tobacco Co., 125 F. 454; Wood Co. v. Hardware Co., 75 S.C. 378; State ex rel. v. Associated Press, 159 Mo. 410; Virtue v. Creamery Co., 179 F. 115; United States v. Standard Oil Co., 173 F. 191; Phillips v. Cement Co., 125 F. 593; Weiboldt v. Standard Fashion Co., 80 Ill.App. 67; Houcks v. Wright, 77 Miss. 476; Walsh v. Dwight, 58 N.Y.S. 288. (2) The business of news-gathering or of printing and publishing a newspaper is strictly a private business and is not impressed with any public use whatsoever; and the Anti-Trust Statutes are not applicable to such business, or to such a contract as we have here. State ex rel. v. Associated Press, 159 Mo. 410. (3) Appellant cannot change his theory, or shift his ground, in this court, by claiming here for the first time that his petition states a cause of action for breach of contract; but he must stand or fall here on the same theory on which he tried the case in the lower court. Gordon v. Park, 202 Mo. 263; Fuess v. Kansas City, 191 Mo. 692; Smith v. Box Co., 193 Mo. 715; Bridwell v. Cockrell, 122 Mo.App. 196. (4) The Post-Dispatch had the right to stipulate with its carriers for their sole and undivided loyalty, and to require them to give their undivided time and attention to its business. Whitwell v. Continental Tobacco Co., 125 F. 454. Such a rule was reasonable and commendable. Matthew, VI. 24.

BLAIR, C. Brown, C., concurs.

OPINION

BLAIR, C.

This is an appeal from an order overruling a motion to set aside a nonsuit taken when the court below, at the beginning of the trial, sustained an objection to the introduction of evidence under the following petition:

"Plaintiff states that defendant is and at all times hereinafter mentioned was a corporation organized under the laws of the State of Missouri, engaged in publishing and selling a daily newspaper in the city of St. Louis, called the St. Louis Post-Dispatch, and caused the said newspaper to be delivered to its subscribers in said city of St. Louis by means of a system of carriers; and for the purpose of distributing and delivering without cost to itself to its subscribers its said newspapers so published as aforesaid; the defendant has divided the city of St. Louis into certain numerous districts commonly called 'routes,' and has sold or given such 'routes' to various paper carriers in said city aforesaid, together with the control of the subscription lists of said 'routes,' and certain rights and privileges hereinafter described and the good will of the business of acting as such carriers.

"Plaintiff states that when a route is so acquired and is owned by a newspaper carrier, it is understood and agreed between defendant and such carrier, according to a well established custom which has existed for more than fifteen years last past with the defendant and its carriers, that said carriers shall have the exclusive right, for an indefinite period of time, to sell and deliver the Post-Dispatch to the subscribers of said paper upon his route, and that he shall buy and defendant will sell to him copies of the Post-Dispatch at one-half the regular subscription price of such newspaper, to-wit: one-half cent for each copy of the afternoon edition and two and one-half cents for each copy of the Sunday morning edition, and that such carrier shall sell the same at the regular price of subscription of said newspaper, to-wit: one cent for each copy of the daily afternoon edition and five cents for each copy of the Sunday morning edition; and that the defendant will sell to such carrier a sufficient number of copies of its papers as will supply all the subscribers living upon such route of such carrier, and that the owner of said route may sell and transfer the same, together with all of the rights and privileges above described and the good will of such newspaper carrying business, provided such owner of said route makes such sale and transfer with the approval, knowledge and consent of the business manager of said newspaper.

"Plaintiff further states that on or about the 15th day of October, 1895, he purchased from defendant for a valuable consideration, one of the aforesaid routes, which was known as Post-Dispatch Route No. 13, together with a list of subscribers of said paper on said route, which at said time consisted of about 170 subscribers.

"Plaintiff states that from the time he purchased said Route No. 13 from defendant in the year 1895, up to on or about the 16th day of April, 1907, plaintiff faithfully performed all of his duties as a carrier of the St. Louis Post-Dispatch, and promptly paid defendant for all copies of the newspaper which were sold by defendant to plaintiff for delivery to the subscribers upon said route, and that by years of devotion to his said business as a newspaper carrier of the St. Louis Post-Dispatch he established a substantial and profitable business which he carried on successfully for many years, until on or about the 16th day of April, 1907, at which date and for a long time prior thereto, he had increased the number of subscribers of the St. Louis Post-Dispatch from 170 to 530 daily afternoon subscribers, and 410 Sunday morning subscribers, from which said business plaintiff derived a profit and income of about $ 27.00 per week; and during all this time from the year 1895 until on or about the 16th day of April, 1907, defendant recognized plaintiff as the owner of said Post-Dispatch Route No. 13, and sold to him at one-half the regular subscription price, a sufficient number of copies of its newspapers to supply all of his customers upon said route which were subscribers for said newspaper.

"Plaintiff states that on or about the 15th day of April, 1907, an afternoon English newspaper known as The St. Louis Times was first published and issued to the public by the German-American Press Association, a corporation, as a competitor in the business of afternoon newspaper publications, and for more than three months prior to said date notice had been given to the public that the publication of such newspaper to be known as the St. Louis Times would be made on or about said date, and the fact of such intended publication became generally known to the public in the city of St. Louis, Missouri, and to this defendant.

"And for his cause of action, plaintiff states that defendant, and Charles J. Goedde, Henry J. Goedde, Otto B. Steiner, Fred Nolker, Fred W. C. Ruesche, J. Blumenthal Ed J. Ichaff, Ben Tzinsberg, Frank S. Wenger, Henry A. Lippert, Jos. J. Remaklus, who were owners of the Post-Dispatch 'routes,' and sold and delivered the said Post-Dispatch newspapers to all subscribers of that paper upon their respective 'routes,' together with other Post-Dispatch carriers whose names are unknown to plaintiff and therefore cannot be stated, did, on or about April 15, 1907, in order to limit competition in the trade of publishing and selling daily afternoon newspapers in the city of St. Louis, Missouri, enter into an agreement and understanding that any and all carriers of the said St. Louis Post-Dispatch in the city of St. Louis, Missouri, would be allowed and could sell and deliver to subscribers any and all newspapers published in the city of St. Louis except the aforesaid St. Louis Times, published by the ...